Mashalane and Another v S (CA&R27/2015) [2015] ZANCHC 19 (5 June 2015)

Mashalane and Another v S (CA&R27/2015) [2015] ZANCHC 19 (5 June 2015)

The court found that the Magistrate and legal representatives misdirected themselves regarding the applicable onus and the provisions of section 60(11)(b) of the Criminal Procedure Act. The charge of theft, committed by law enforcement officers acting together, falls within Schedule 5, shifting the onus to the appellants to show that the interests of justice permit their release. The Magistrate's factual findings were not shown to be wrong, and the refusal of bail was justified on the evidence. However, the appellants were not afforded a reasonable opportunity to present evidence under the correct legal framework. In the interests of justice and constitutional rights, the bail application...

Citation
[2015] ZANCHC 19
Parties
Applicant: Christopher Makwadi Mashalane; Applicant: Tshidiso Bodigelo; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
5 June 2015
Case Number
CA&R27/2015
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail Pending Trial
Outcome
Appeal upheld in part; Magistrate's decision set aside and bail application remitted for reconsideration under section 60(11)(b) of the Criminal Procedure Act.
Judges
Erasmus, AJ
Legal Topics
Bail Application, Onus of Proof, Schedule 5 Offences, Criminal Procedure Act, Interests of Justice
Criminal Law Civil Procedure Bail Application Onus of Proof Schedule 5 Offences Criminal Procedure Act Interests of Justice

Case Brief

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Parties

Christopher Makwadi Mashalane

Applicant

Tshidiso Bodigelo

Applicant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail Pending Trial

Legal Issues

  1. 1 Whether the Magistrate erred in refusing bail to the appellants.
  2. 2 Whether the charge of theft falls within the ambit of Schedule 5 of the Criminal Procedure Act.
  3. 3 Whether the correct onus was applied in the bail application.

Ratio Decidendi

The court found that the Magistrate and legal representatives misdirected themselves regarding the applicable onus and the provisions of section 60(11)(b) of the Criminal Procedure Act. The charge of theft, committed by law enforcement officers acting together, falls within Schedule 5, shifting the onus to the appellants to show that the interests of justice permit their release. The Magistrate's factual findings were not shown to be wrong, and the refusal of bail was justified on the evidence. However, the appellants were not afforded a reasonable opportunity to present evidence under the correct legal framework. In the interests of justice and constitutional rights, the bail application...

Court Disposition

Appeal upheld in part; Magistrate's decision set aside and bail application remitted for reconsideration under section 60(11)(b) of the Criminal Procedure Act.

Orders

  • The decision of the Magistrate, Galeshewe, in the bail application under case number GAL 538/2015 is set aside.
  • The bail application is remitted to the Magistrate, Galeshewe, to be adjudicated in terms of section 60(11)(b) of the Criminal Procedure Act, No. 51 of 1977.